RB exam

Question 1

Question (RB)

Answer 1

To what extent do the courts reflect the golden thread principle? placing th legal burden on P?

Question 2

Intro

Answer 2

GT definition (Woolmignton v DPP 1935) Viscount Sankey - Burden on P.

Courts generaly abide to GT but with exceptions where burden reversed.

Exceptions generally strike a fair balance.

Question 3

Context

Answer 3

GT is strengthened by Art 6 - Presumption of innocence - emburdens D with L burden (def)

E burden (def) always flips between D and P

Sometimes the L burden reverses (largely criticised by Sturmer who believes that the pres is a strict note on how P conducts a trial - proving elements of crime.

Question 4

Exceptions generally

Answer 4

Common law - M’Naughten (insanity) RB on P

Predates Woolmington - never been an absolute presumption

Statutory - Sheldrake v DPP - Facts - not all RBs violate art 6.

Question 5

Common law and Statutory RBs, analysis

Answer 5

In niether M’Naughten or Sheldrake is it over cumbersome to emburden D.

In both D is the best person to know what is going on in D’s mind, so it is not unreasonable to expect D to prove it.

And it is only proved on balance of probabilities.

Question 6

What causes the burden to flip?

Answer 6

Penal statutes vs Regulatory statutes distinction matters here

More serious the penalty = Evidential burden more likely imposed

More regulatory = Legal burden imposed.

least possible onus on D.

Question 7

Examples of Penal v Regulatory

Answer 7

Penal - R v Lambert - Court will read down ‘prove’ to mean evidential burden.

Reg - R v Edwards -Where the reasonableness to expect D to prove something outweighs the the unreasonablesness to expect P to prove, the legal onus will lay with D. -

Producing a licence to sell alcohol.

Question 8

Furthermore,

Answer 8

s101 Magistrates Court Act puts Legal burden on D when evidencing a qualification or excuse they have made

ie to produce a driving licence or to explain their innocent handling of a knife in public.
(R v Hunt)

Question 9

Critique

Answer 9

Dennis positive towards regulatory reverse burdens but in terms of harsher punishment stricter adherence to presumption and golden thread is needed.

Dennis woud disagree with:
Foye 2013 - Diminished responsibility

Webster - bribery (absence of corruption)

Hamer agrees broadly but believes the most important thing is a fair balance (Janosevic; Salabaiku)

Overall Golden thread is reflected in the courts attitude, D is never asked to prove their innocence in an overly burdensome way, even when the burden flips it is not unreasonable in those circumstances. (Glover)